Pastor John Ponnaiah v. The Assistant Commissioner of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.10.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.14813 of 2009Pastor John PonnaiahThe elected Secretary Madras Pentecostal AssemblyA registered society bearingRegistration No.5/1934-35MPA Church, 61, Barathi Nagar Main Road,Pallavaram, Chennai – 600 043. ... PetitionerVs1.The Assistant Commissioner of Police, Royapettah High Road, Royapettah, Chennai -14.2.Deputy Registrar of Societies, Chennai Central, Chennai -18.3.The District Registrar of Societies, Chennai -28.4.Stanley Vasu ... RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of mandamus, to direct the first respondent totake action on the representation of the petitioner dated14.10.2008 (directing the handing over the management of thesociety Madras Pentecostal Assembly, having its head office atNo.12-14, Thandavarayan Street, Royapettah, Chennai – 600 014, bythe fourth respondent to the elected/competent/approved committeeof Society) forthwith.For Petitioner : Mr.V.ShanmughamFor Respondents : Mr.R.Neelakantan, G.A. For R1 to R3 Mr.N.D.Bahety for R4 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner claiming to be the elected office bearer of theMadras Pentecostal Assembly, which is a registered Society underthe Tamil Nadu Societies Registration Act has filed the presentwrit petition, seeking for a direction to the first respondent(Assistant Commissioner of Police, Chennai 14) to take action onthe representation of the petitioner dated 14.10.2008 forthwith andpass appropriate orders. In his representation, the petitionersought for handing over the Management of the Society, namely, theMadras Pentecostal Assembly, having its office at ThandavarayanStreet, Royapettah, Chennai -14 to the elected committee of theSociety by the fourth respondent.2. Notice was ordered to the respondents. The fourthrespondent has entered appearance and has also filed a counteraffidavit dated 27.10.2009.3. It is the case of the petitioner that the petitioner'sSociety was registered as early as in the year 1934 and it isgoverned by the by-laws of the Society. The fourth respondent'sfather was elected as the Superintending Pastor. Subsequently, hedied on 03.03.1995. After the death of his father, a meeting ofthe Society was convened and the fourth respondent himself declaredelected as the President of the Society.4. The writ petitioner along with three other members of theSociety filed a suit before the II Assistant City Civil Court beingO.S.No.5307 of 1996 to declare that the election of the fourthrespondent as the President of the Society as well as the meetingof the Board of Trustees held on 11.03.1995 as null and void. TheCivil Court by its judgment and decree dated 25.11.2005 decreed thesuit in favour of the petitioners. It is admitted that the saidsuit was taken on appeal by the fourth respondent in A.S.No.293 of2006 and it is pending before the I Additional City Civil Court. Itis also claimed that no interim order was passed by the lowerappellate court. 5. It is stated by the petitioner that subsequent to the suit,elections were held for the said Society and that is not underchallenge. But notwithstanding the fact that the fourth respondenthas no right to keep in possession of all the records and themanagement of the Society and that he has been holding theproperties of the Society illegally, had necessitated thepetitioner to complain to the authorities including RegistrationDepartment. It is further stated by the petitioner that the thirdrespondent District Registrar of Societies by a proceedings dated28.08.2007 held that the petitioner was the declared office bearerin terms of Form VII registered with the Registrar and therefore,all records and documents must be handed over to the ExecutiveCommittee selected by the general body on 18.08.2007. It is also https://hcservices.ecourts.gov.in/hcservices/ stated that the petitioner sent a representation to the firstrespondent dated 14.10.2008 claiming that the fourth respondent hadlocked the premises and not handed over the documents and themanagement of the Society and hence, they wanted sufficient policeprotection from being attacked by any anti-social elements set upby the fourth respondent.6. The fourth respondent resisting the prayer made by thepetitioner in the counter affidavit stated that the petitioner'selection was not declared as final by the department. On thecontrary, the Inspector General of Registration, by his ordersdated 18.09.2007 and 16.04.2009 had taken an opposite view.Therefore, the petitioner claiming himself to be an elected body isnot recognised by him. It is also stated that the petitioner hadnot disclosed all the correspondences and has produced onlyselected correspondence before this Court. It is also stated thatfirst respondent has no jurisdiction to interfere with the affairsof the Society and the writ petition itself is not maintainable. 7. It is further claimed that the issues raised herein wereall subject matter of civil suits before the City Civil Court beingO.S.No.5307 of 1996, O.S.NO.3304 of 1997 and O.S.No.2932 of 1998.While the last two suits were dismissed, the first suit as statedalready is pending in appeal. 8. It is under these circumstances, the claim made by thepetitioner will have to be considered. 9. Mr.V.Shanmugam,learned counsel for the petitioner submittedthat when the petitioner has been the lawfully elected as officebearer of the Society, there is no justification for the fourthrespondent to retain the records and prevent the petitioner fromfunctioning. With reference to his request for police protection,the learned counsel placed reliance upon the judgment of theSupreme Court in Howrah Mills Co. Ltd and another v. Md.Shamin andothers reported in (2006) 5 SCC 539 and submitted that a writ ofmandamus directing the State and its police authorities to givenecessary protection in respect of the properties is alsoavailable. This Court is unable to accept the said argument. 10. The said judgment of the Supreme Court arose on adifferent context. A Jute Mill was brought under BFIR and acustodian was appointed. During the custody by the custodian, lotof materials were being stolen and loss properties. It is in thatcontext, the police protection was sought for. But the Policedemanded costs to be paid. While considering the relief claimed bya sick Jute Mill, the Supreme Court directed requisite protectionin respect of the properties of the company should be given so thatthe company can repair or raise its compound wall and forconstruction of a separate boundary wall for the plot of landproposed to be sold under the supervision of BIFR. It is not clearas to how this judgment has any relevance to the case projected bythe petitioner. https://hcservices.ecourts.gov.in/hcservices/

11. On the contrary, the following passage found in Paragraph13 of the judgement cited supra will show that the relief claimedby the petitioner cannot be granted. Paragraph 13 reads as follows:"13. Mr.Roy, learned counsel for the State hascategorically submitted before us that the State wouldperform its duties in the matter of maintenance of lawand order and it shall provide protection to theproperty of the first appellant Company in discharge ofthe statutory duties of the State and the police. Inthis context, the authorities may consider whether itis necessary to engage a large force of policemen atthis stage and consider posting only such number ofpersonnel as may be found necessary for the protectionof the property. That would enable a reduction in thecost of protection to be paid by the appellants and theState would be free to reduce the charges payable bythe appellants for protection of the properties. In thelight of the directions as above and the observations,IAs Nos.4 and 5 of 2006 will stand disposed of."12. The learned counsel for the petitioner also placed reliedupon the judgment of the Supreme Court in P.R.Murlidharan andothers v. Swami Dharmananda Theertha Padar and Others reported in(2006) 4 SCC 501. He submitted that in a given case, a person maybe entitled to police protection having regard to the threatperception to his life and liberty or for protection of rightsdeclared by a decree or order passed by a civil court, and if theCourt is satisfied that the authorities have failed to performtheir duties. 13. In the very same judgment, in paragraph 11 it was observedas follows:-"11. The question is a contentious one. Construction ofthe said trust and the rights and obligationsthereunder were in question. The first respondentfiled a suit in that behalf. The said suit wasdismissed. In terms of Order 9 Rule 9 of the Code ofCivil Procedure another suit would not be maintainableat his instance. We have noticed hereinbefore thatanother suit being OS NO.30 of 2002 is pending in theCourt of Munsif. The High Court, despite noticing thesaid fact, sought to usurp the jurisdiction of thecivil court. It, as noticed hereinbefore, determinedthe contentious issues which were required to be provedin terms of the provisions of the Evidence Act."14. The learned counsel submitted that only when there is adisputed question of fact, the question of declining relief by theself imposed restriction under Article 226 may arise. In thepresent case there is no dispute with reference to the facts of thecase. Though this argument sounds attractive, in the very same https://hcservices.ecourts.gov.in/hcservices/ judgment, Justice P.K.Balasubramanyan in his concurring opinion inparagraph 19 observed as follows:"19. A writ for "police protection" so-called, hasonly a limited scope, as, when the court is approachedfor protection of rights declared by a decree or by anorder passed by a civil court. It cannot be extendedto cases where rights have not been determined eitherfinally by the civil court or, at least at aninterlocutory stage in an unambiguous manner, and thentoo in furtherance of the decree or order."15. Per contra, Mr.N.D.Bahety, learned counsel appearing forthe fourth respondent brought to the notice of this Court thejudgment of the Supreme Court in Moran M.Baselios Marthoma MathewsII and others v. State of Kerala and others reported in (2007) 6SCC 517. In the said judgment, the Supreme Court referred toP.R.Murlidharan's case and in Paragraphs 12,13 and 15 had observedas follows:"12.Such might have been the contentions of theappellants before the High Court or before us in thespecial leave petitions, but we have no doubt in ourmind that such disputed questions in regard to titleof the properties or the right of one group againstthe other in respect of the management of such a largenumber of Churches could not have been the subject-matter for determination by a writ court under Article226 of the Constitution of India in the garb of grantof police protection to one or the other appellants.13. We, therefore, are of the opinion thatdespite the fact that the appellants had insisted uponbefore the High Court for issuance of a writ or in thenature of mandamus upon the State or its officers forthe purpose of grant of police protection as thisCourt has exercised its appellate jurisdiction underArticle 136 of the Constitution of India, it can andshould go into that question as well viz. As towhether the writ petition itself could have beenentertained or not, particularly, when the appeal is acontinuation of the original proceedings.15. For the reasons stated hereinbefore, we areof the opinion that the High Court committed amanifest error in going into the disputed questions oftitle as also the disputed questions in regard to therights of a particular group to manage the Churches,in exercise of its writ jurisdiction, particularly,when such questions are pending consideration beforecompetent civil courts. We, therefore, are of theopinion that any observation made by the High Courtshould not influence the courts concerned in arriving https://hcservices.ecourts.gov.in/hcservices/ at their independent decisions and in respect thereof,all contentions of the parties shall remain open."16. Apart from these facts, it must also be noted that theRegistrar of Societies cannot adjudicate the rights of parties evenin case of election of members in a Society. It has been held bya Full Bench of this Court that a Registrar's power to record FormVII is not final. If there is any dispute with reference to thecontents of Form VII, the parties will have to move the Civil courtand that the Registrar under the Societies Registration Act has nopower to adjudicate the rights of parties vide its judgment inC.M.S.Evangelical Suvi David Memorial Higher Secondary SchoolCommittee v. The District Registrar, Cheranmahadevi and 4 othersreported in 2005(2) MLJ 335 (FB) (See – Paras 17,18 and 20)17. If it is seen in the above factual matrix and the legalprecedents, the relief sought for by the petitioner that too onlyon the basis of a letter by the District Registrar, directing theexisting office bearers to hand over the records to the newlyelected officer bearers cannot be countenanced by this Court. Thatorder of the District Registrar cannot be raised to the level of adecree by a civil court. Even assuming that there was a decree of acivil court as laid down in P.R.Murlidharan's case (cited supra),it is for the parties to execute such a decree in the manner knownto law. It is one thing to say that a Civil court has got powerunder Section 151 CPC to order police protection, but it is otherthing to say that having obtained a civil court's decree, thisCourt under Article 226 must order police protection for executingthe civil court's decree.18. The contention of the learned counsel for the petitionerthat ultimately whether it is Section 151 CPC or Article 226 of theConstitution, only this Court will be granting such direction andthat it was immaterial under which wing of this Court thepetitioner had approached. This argument though may soundattractive, but this Court is not inclined to accept the same. Ifthe Civil Court is seized of the matter, if is for the parties toapproach the Civil Court including execution of its order. ThisCourt, by exercising extraordinary jurisdiction under Article 226of the Constitution of India cannot order police protection withoutthere being any justification in favour of the petitioner. 19. In the light of the above, the writ petition standsdismissed. No costs. Mr.V.Shanmugam, learned counsel for thepetitioner stated that the fourth respondent is indulging in verymany criminal activities and therefore, the dismissal of the writpetition should not stand in the way of seeking relief by filingappropriate criminal complaint. It is suffice to state that any https://hcservices.ecourts.gov.in/hcservices/ observation made in this writ petition will not stand in the way ofthe petitioner invoking jurisdiction of other fora available underlaw. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsvkiTo1.The Assistant Commissioner of Police, Royapettah High Road, Royapettah, Chennai -14.2.Deputy Registrar of Societies, Chennai Central, Chennai -18.3.The District Registrar of Societies, Chennai -28.+ One cc to Mr.V.Shanmugam, CC SR 57219+ Two ccs to Mr.N.D.Bahety, CC SR 57012+ One cc to Govt. Pleader CC SR 57135W.P.No.14813 of 2009MBS (CO)RH (4.11.09)